Citation NR: 9709110
Decision Date: 03/21/97 Archive Date: 03/31/97
DOCKET NO. 92-07 805 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania
THE ISSUE
Entitlement to an increased evaluation for a pleural cavity
injury, residuals of shell fragment wound, currently
evaluated as 20 percent disabling.
REPRESENTATION
Appellant represented by: Richard D. Lebovitz, Attorney
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
John J. Crowley, Counsel
INTRODUCTION
The veteran served on active duty from October 1944 to
September 1945.
This matter is currently before the Board of Veterans’
Appeals (Board) on appeal from a rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO). In
January 1996, the Board, after two remands to the RO for
additional development and evaluation, upheld the RO’s denial
of the claim. The veteran filed a timely appeal to the
United States Court of Veteran’s Appeals (Court).
In October 1996, the General Counsel for the Department of
Veterans Affairs (General Counsel) and the veteran’s attorney
filed a joint motion to vacate the Board’s decision and to
remand this matter for development and readjudication. The
Court granted the joint motion that month, vacating and
remanding the case to the Board.
The joint motion makes reference to additional “inferred
claims” of entitlement to service connection for the
following issues: (1) lung cancer secondary to the residuals
of a shell fragment wound; (2) scaring and deformity of the
veteran’s left rib area, including adhesions and pain in the
intercostal muscles; and (3) a thoracic spine disability.
In November 1992, the Board noted that the veteran had raised
the issue of entitlement to service connection for
hemorrhoids. This issue was referred to the RO for
appropriate action. In our August 1994 remand, the Board
noted that the issues of entitlement to service connection
for hemorrhoids, arthritis, a back disability, a leg
disability, and a bilateral shoulder disability appeared to
have been raised. These issues were again referred to the RO
for development. More recently, the veteran’s attorney, in
his recent comprehensive written argument to the Board,
raised additional issues, including entitlement to a total
disability evaluation based on unemployability due to service
connected disabilities. It is unclear which of the issues
cited above, if any, the RO has adjudicated.
Under the provisions of 38 U.S.C.A. § 7105(a) (West 1991), an
appeal to the Board must be initiated by a notice of
disagreement and completed by a substantive appeal after a
statement of the case is furnished to the veteran. In
essence, the following sequence is required: There must be a
decision by the RO, the veteran must express timely
disagreement with the decision, VA must respond by explaining
the basis of the decision to the veteran, and finally the
veteran, after receiving adequate notice of the basis of the
decision, must complete the process by stating his argument in
a timely-filed substantive appeal. See 38 C.F.R. §§ 20.200,
20.201, 20.202, and 20.203 (1996). The Board must also note
that in the case of Parker v. Brown, 7 Vet.App. 116 (1994) the
Court announced that if two issues are related, but not
inextricably related, they may be adjudicated separately. On
the basis of Parker, the Board finds that several of the
issues cited above, while related to the issue certified for
the Board’s consideration, are not inextricably related.
Consequently, no other issue, other than the claim of
entitlement to service connection for an increased evaluation
for a pleural cavity injury, is before the Board at this time.
38 U.S.C.A. § 7105(a) (West 1991).
The veteran’s attorney is asked to make clear which specific
issues he wishes the RO to adjudicated at this time. The RO
should then fully and promptly adjudicate these claims.
REMAND
Disability evaluations are determined by the application of a
schedule of ratings which is based on average industrial
impairment. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R.
Part 4. Separate diagnostic codes identify the various
disabilities. In January 1996, the Board evaluated the
veteran as 20 percent disabled for his service connected
pleural cavity injury, residuals of shell fragment wound,
under diagnostic codes 5301, 5302, 5303, 5304, 6818. In
September 1996, 8 months after the Board determination in
this case, the schedule of ratings for the respiratory system
was modified. 61 Fed. Reg. 46720 (September 5, 1996). As
noted by the joint motion, in Karnes v. Derwinski,
1 Vet.App. 308, 313 (1991), the Court stated that where the
law or regulation changes after a claim has been filed or
reopened but before the administrative or judicial appeal has
been concluded, the version most favorable to the veteran
will apply. Consequently, the veteran must now be evaluated
under both criteria.
Since the most recent supplemental statement of the case, the
veteran’s attorney has submitted additional evidence in
support of his claim. Some, though not all, of the documents
are duplicates of information previously before the RO.
Consistent with the provisions of 38 C.F.R. § 20.1304(c)
(1996), this evidence must be referred to the RO for review.
In light of the foregoing, the Board finds that further
development, as specified below, is warranted. Accordingly,
the case is REMANDED for the following development:
1. The RO should request the veteran to
identify the names, addresses and
approximate dates of treatment for all
health care providers who may possess
additional records pertinent to his
claim. After securing any necessary
authorization from the veteran, the RO
should attempt to obtain copies of those
treatment records identified by the
veteran which have not been previously
secured.
2. After the aforementioned documents
have been obtained, the RO should arrange
for a VA pulmonary examination to
determine the extent of the veteran’s
pleural cavity injury. All indicated
studies should be performed and the
claims folder or the pertinent medical
records contained therein must be
reviewed by the examiner in conjunction
with the examination. The examiner
should provide explicit responses to the
following questions:
(a) What are the objective
manifestations of the service-connected
pleural cavity injury? All positive
findings should be described and any
functional impairment attributable to
this condition should also be described,
including a full description of the
affects of the disability upon his
ordinary activity.
(b) Does the veteran have any additional
identifiable disabilities secondary to
his service-connected pleural cavity
injury?
(c) The entrance and exit sites of any
shell fragment wound examined should be
clearly identified.
(d) Does the veteran have any additional
disabilities secondary to his service-
connected shell fragment wound?
3. The RO should review the report above to
determine if it meets the requirements of
paragraph 2. If not, the report should be
returned as inadequate for rating purposes.
38 C.F.R. § 4.2 (1996).
4. Thereafter, the case should be reviewed
by the RO with specific consideration of the
October 1996 joint motion, 38 C.F.R. § 4.96,
4.97 (1996), and with consideration of the
rating criteria in effect prior to and as of
September 5, 1996. Any applicable diagnostic
codes within the rating schedule prior to and
as of September 5, 1996, which could possibly
provide the veteran with a higher evaluation
of his disability should be reviewed. The RO
should also expressly address the provisions
of 38 U.S.C.A. § 3.321(b)(1) (1996), and
provide appropriate notice to the veteran of
a determination in this regard. The RO
should also adjudicate all other issues
raised by the veteran or his representative.
In adjudicating the issue of secondary
service connection, consideration should be
given to the provisions of 38 C.F.R.
§ 3.310(a) (1996), Allen v. Brown, 7 Vet.App.
439 (1995), and Caluza v. Brown, 7 Vet.App.
498 (1995). The veteran and his attorney are
advised that any additional claims will not
be before the Board unless the determination
of the RO is unfavorable, and the veteran
files a notice of disagreement and completes
all procedural steps necessary to appeal a
claim to the Board in accordance with 38
U.S.C.A. § 7105 (West 1991).
If the benefits sought on appeal are not granted to the
veteran’s satisfaction, the RO should issue a supplemental
statement of the case, and he and his representative should
be provided an opportunity to respond. The case should then
be returned to the Board for further appellate consideration,
if otherwise in order.
RICHARD B. STANDEFER
Member, Board of Veterans’ Appeals
The Board of Veterans’ Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans’ Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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